Correspondence about exceptional event submissions and decisions

This message is to confirm your request submission to the FOIAonline application: View Request. Request information is as follows: (https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=EPA-2023-004598&type=Request)

* Tracking Number: EPA-2023-004598
* Requester Name:
Dillon Bergin
* Date Submitted: 06/02/2023
* Request Status: Submitted
* Description:

To Whom It May Concern:

Pursuant to the Freedom of Information Act, I hereby request the following records:

All communication regarding exceptional event submissions, including, but not limited to, approvals, denials or requests for more information, as described in 40 C.F.R. 50.14 between September 30, 2016, through May 05, 2023.

This request was originally part of EPA-R9-2023-002468.

We request that all of these records be produced in their native electronic formats with any attached metadata included, so long as such electronic files can be opened using standard commercially available software. If the files cannot be produced in this manner, we request that records be produced in an alternative electronic format that is text-searchable. 5 U.S.C. § 552(a)(3)(B)

Fee Waiver Request

A waiver of search and review fees is appropriate here because disclosure of the requested information is in the public interest under 5 U.S.C. § 552(a)(4)(A)(iii) and 45 C.F.R. § 5.54(a), (b)(1)-(2), and because the request is not primarily in the Brown Institute, MuckRock, or California Newsroom’s commercial interest, 45 C.F.R.§§ 5.45(a), (b)(3)(ii).

Disclosure Is in the Public Interest

Disclosure of the requested information is likely to contribute significantly to the public understanding of the regulation of air pollution, which is harmful to human health. 45 C.F.R. § 5.54(b)(1). In particular, the requested information will shed light on exceptional events, a mechanism used by regulators to account for and exclude air pollution, information which is not “already in the public domain.” 45 C.F.R. § 5.54(b)(2)(i). As a nonprofit organization assisting other news media organizations on coverage of federal government policy, we have demonstrated our “ability and intention to effectively convey information to the public.” 45 C.F.R. § 5.54(b)(2)(ii).

Limitation of Fees

We are also entitled to a limitation of fees because we are a member of the news media. 45 C.F.R. § 5.53(b); 5 U.S.C. § 552(a)(4)(A)(ii)(II). Accordingly, even if our application for a waiver of all fees is denied, we are entitled to a limitation of fees. As a news media requester, we are “entitled to search time, review time, and up to 100 pages of duplication” and can be charged only duplication fees after the first 100 pages or its cost equivalent. 45 C.F.R. § 5.53(b). We request that the information be provided in its native electronic format, and thus there should be no duplication fees.

Request for Expedited Processing

We also ask that the information requested be disclosed on an expedited basis. Expedited processing is appropriate here because a “compelling need” exists for disclosure of the requested information. 5 U.S.C. § 552(a)(6)(E)(i)(I). A compelling need exists when, with respect to a request made by a person primarily engaged in disseminating information to the public, there is “an urgent need to inform the public about an actual or alleged Federal Government activity.” 45 C.F.R. §5.27(b)(2).

As a news organization, we are primarily engaged in disseminating information to the public. Over the last several years, wildfires have grown, and with them, so has pollution from particulate matter and ozone. Climate change is a significant factor in the understanding of five of the six criteria pollutants, and understanding how criteria pollution overall is excepted is crucial to public understanding of the management of health risks. The information requested thus concerns “a matter of exigency to the American public” and “the consequences of delaying a response would compromise a significant recognized interest.” Bloomberg, L.P. v. United States Food & Drug Admin., 500 F. Supp. 2d 371, 377 (S.D.N.Y. 2007) (quoting Al-Fayed v. C.I.A., 254 F.3d 300, 310 (D.C. Cir. 2001)).

Request for Explanation of Withholdings and Redactions

If this request is denied in whole or in part, please provide a reasonable description of any withheld materials and a justification for all such withholdings that includes reference to the specific FOIA exemptions authorizing withholding and specific reasons why such exemptions apply. 45 C.F.R. § 5.31. An agency shall withhold information only if “the agency reasonably foresees that disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.” 5 U.S.C. § 552(a)(8)(A)(i). We therefore request that if the EPA determines that an exemption applies that it also provide specific reasons why disclosure would harm any interest protected by such exemption. An agency shall also “consider whether partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible” and “take reasonable steps necessary to segregate and release nonexempt information.” Id. 552(a)(8)(A)(ii). We therefore request that the EPA release all segregable portions of otherwise exempt material.

***

Thank you for your prompt attention to this request. If you have any questions or concerns about what we are seeking, please do not hesitate to contact us at the email address below. Pursuant to the applicable FOIA provision and departmental regulations, we expect a response regarding this request within the ten (10) working day time limit set by law. 45 C.F.R. § 5.27(c); 5 U.S.C. § 552(a)(6)(E)(ii)(I).

Sincerely,

Brown Institute, MuckRock, and California Newsroom
℅ Brown Institute for Media Innovation
2950 Broadway
New York NY 10027

06/06/2023
Dillon Bergin
MuckRock News 263 Huntington Ave
DEPT MR 145385
Boston, MA, 02115

requests@muckrock.com
RE: Freedom of Information Act Request - EPA-2023-004598
Hello:
Please see the attached letter.
Sincerely,

National FOIA Office
U.S. Environmental Protection Agency

06/07/2023
Dillon Bergin
MuckRock News 263 Huntington Ave
DEPT MR 145385
Boston, MA, 02115

requests@muckrock.com
RE: Freedom of Information Act Request - EPA-2023-004598
Hello:
Please see attached letter.
Sincerely,

National FOIA Office
U.S. Environmental Protection Agency

The FOIA request EPA-2023-004598 has had its Tracking Number changed to EPA-R9-2023-004598. This is normally due to the request being transferred to another agency (for example, EPA to Dept. of Commerce) or to a sub-agency to process it. Additional details for this request are as follows:

* Old Tracking Number:
EPA-2023-004598
* New Tracking Number:
EPA-R9-2023-004598
* Requester Name:
Dillon Bergin
* Date Submitted:
06/02/2023
* Long Description:

To Whom It May Concern:

Pursuant to the Freedom of Information Act, I hereby request the following records:

All communication regarding exceptional event submissions, including, but not limited to, approvals, denials or requests for more information, as described in 40 C.F.R. 50.14 between September 30, 2016, through May 05, 2023.

This request was originally part of EPA-R9-2023-002468.

We request that all of these records be produced in their native electronic formats with any attached metadata included, so long as such electronic files can be opened using standard commercially available software. If the files cannot be produced in this manner, we request that records be produced in an alternative electronic format that is text-searchable. 5 U.S.C. § 552(a)(3)(B)

Fee Waiver Request

A waiver of search and review fees is appropriate here because disclosure of the requested information is in the public interest under 5 U.S.C. § 552(a)(4)(A)(iii) and 45 C.F.R. § 5.54(a), (b)(1)-(2), and because the request is not primarily in the Brown Institute, MuckRock, or California Newsroom’s commercial interest, 45 C.F.R.§§ 5.45(a), (b)(3)(ii).

Disclosure Is in the Public Interest

Disclosure of the requested information is likely to contribute significantly to the public understanding of the regulation of air pollution, which is harmful to human health. 45 C.F.R. § 5.54(b)(1). In particular, the requested information will shed light on exceptional events, a mechanism used by regulators to account for and exclude air pollution, information which is not “already in the public domain.” 45 C.F.R. § 5.54(b)(2)(i). As a nonprofit organization assisting other news media organizations on coverage of federal government policy, we have demonstrated our “ability and intention to effectively convey information to the public.” 45 C.F.R. § 5.54(b)(2)(ii).

Limitation of Fees

We are also entitled to a limitation of fees because we are a member of the news media. 45 C.F.R. § 5.53(b); 5 U.S.C. § 552(a)(4)(A)(ii)(II). Accordingly, even if our application for a waiver of all fees is denied, we are entitled to a limitation of fees. As a news media requester, we are “entitled to search time, review time, and up to 100 pages of duplication” and can be charged only duplication fees after the first 100 pages or its cost equivalent. 45 C.F.R. § 5.53(b). We request that the information be provided in its native electronic format, and thus there should be no duplication fees.

Request for Expedited Processing

We also ask that the information requested be disclosed on an expedited basis. Expedited processing is appropriate here because a “compelling need” exists for disclosure of the requested information. 5 U.S.C. § 552(a)(6)(E)(i)(I). A compelling need exists when, with respect to a request made by a person primarily engaged in disseminating information to the public, there is “an urgent need to inform the public about an actual or alleged Federal Government activity.” 45 C.F.R. §5.27(b)(2).

As a news organization, we are primarily engaged in disseminating information to the public. Over the last several years, wildfires have grown, and with them, so has pollution from particulate matter and ozone. Climate change is a significant factor in the understanding of five of the six criteria pollutants, and understanding how criteria pollution overall is excepted is crucial to public understanding of the management of health risks. The information requested thus concerns “a matter of exigency to the American public” and “the consequences of delaying a response would compromise a significant recognized interest.” Bloomberg, L.P. v. United States Food & Drug Admin., 500 F. Supp. 2d 371, 377 (S.D.N.Y. 2007) (quoting Al-Fayed v. C.I.A., 254 F.3d 300, 310 (D.C. Cir. 2001)).

Request for Explanation of Withholdings and Redactions

If this request is denied in whole or in part, please provide a reasonable description of any withheld materials and a justification for all such withholdings that includes reference to the specific FOIA exemptions authorizing withholding and specific reasons why such exemptions apply. 45 C.F.R. § 5.31. An agency shall withhold information only if “the agency reasonably foresees that disclosure would harm an interest protected by an exemption” or “disclosure is prohibited by law.” 5 U.S.C. § 552(a)(8)(A)(i). We therefore request that if the EPA determines that an exemption applies that it also provide specific reasons why disclosure would harm any interest protected by such exemption. An agency shall also “consider whether partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible” and “take reasonable steps necessary to segregate and release nonexempt information.” Id. 552(a)(8)(A)(ii). We therefore request that the EPA release all segregable portions of otherwise exempt material.

***

Thank you for your prompt attention to this request. If you have any questions or concerns about what we are seeking, please do not hesitate to contact us at the email address below. Pursuant to the applicable FOIA provision and departmental regulations, we expect a response regarding this request within the ten (10) working day time limit set by law. 45 C.F.R. § 5.27(c); 5 U.S.C. § 552(a)(6)(E)(ii)(I).

Sincerely,

Brown Institute, MuckRock, and California Newsroom
℅ Brown Institute for Media Innovation
2950 Broadway
New York NY 10027

Hello,
Please see the attached letter.
Sincerely,
EPA National FOIA Office.

Your request for Expedited Processing for the FOIA request EPA-R9-2023-004598 has been
denied.

* Expedited Processing Original Justification:
We also ask that the information requested be disclosed on an expedited basis. Expedited processing is appropriate here because a “compelling need” exists for disclosure of the requested information. 5 U.S.C. § 552(a)(6)(E)(i)(I). A compelling need exists when, with respect to a request made by a person primarily engaged in disseminating information to the public, there is “an urgent need to inform the public about an actual or alleged Federal Government activity.” 45 C.F.R. §5.27(b)(2).

As a news organization, we are primarily engaged in disseminating information to the public. Over the last several years, wildfires have grown, and with them, so has pollution from particulate matter and ozone. Climate change is a significant factor in the understanding of five of the six criteria pollutants, and understanding how criteria pollution overall is excepted is crucial to public understanding of the management of health risks. The information requested thus concerns “a matter of exigency to the American public” and “the consequences of delaying a response would compromise a significant recognized interest.” Bloomberg, L.P. v. United States Food & Drug Admin., 500 F. Supp. 2d 371, 377 (S.D.N.Y. 2007) (quoting Al-Fayed v. C.I.A., 254 F.3d 300, 310 (D.C. Cir. 2001)).
* Expedited Processing Disposition Reason:
see denial letter sent on 6/7/23.

Hello,
Please see the attached letter.
Sincerely,
EPA National FOIA Office.

Your request for Fee Waiver for the FOIA request EPA-R9-2023-004598 has been
denied.

* Fee Waiver Original Justification:
A waiver of search and review fees is appropriate here because disclosure of the requested information is in the public interest under 5 U.S.C. § 552(a)(4)(A)(iii) and 45 C.F.R. § 5.54(a), (b)(1)-(2), and because the request is not primarily in the Brown Institute, MuckRock, or California Newsroom’s commercial interest, 45 C.F.R.§§ 5.45(a), (b)(3)(ii).
* Fee Waiver Disposition Reason:
See denial letter since 6/14/23.

EPA-R9-2023-004598 has been processed with the following final disposition: Full Grant.
Records were released to the public as a result of this request. You may retrieve these records immediately using the following link: Over the next 2 hours, these records are also being added to FOIAonline's search pages, further enabling you to retrieve these documents associated with your FOIA request at any time. View Records (https://foiaonline.gov/foiaonline/action/public/submissionDetails?trackingNumber=EPA-R9-2023-004598&type=Request)

The FOIA
appeal
- EPA-2023-005997 has been supplemented with additional supporting files. Additional details for this item are as follows:

* Tracking Number: EPA-2023-005997
* Requester: Dillon Bergin
* Submitted Date: 08/11/2023
* Description:
Appeal of the Final Response Determination for EPA-R9-2023-004598. See the Appeal Letter for more details. We are in receipt of what Region 9 has characterized as final production for FOIA request EPA-R9-2023-004598. We write to appeal the decision to produce just six documents to this request. With this appeal we hope to clarify the amount of relevant records EPA may possess, for the purpose of reporting information in and about these records to the public.

To begin, we reproduce the language in the original request here: All communication regarding exceptional event submissions, including, but not limited to, approvals, denials or requests for more information, as described in 40 C.F.R. 50.14 between September 30, 2016, through May 5, 2023. This request was originally part of EPA-R9-2023-002468. (emphasis added)

In response to this language, Region 9 has provided six documents: two initial notification
related forms, 2 PowerPoint presentations, and written communications between CARB and
EPA (one letter each, to the other).

We emphasize that we intended for the phrase "all communication" to be construed liberally, to
include any and all e-mails, faxes, notes, memoranda, phone records, video recordings, and the
like, regarding exceptional events submissions. We believe that should include correspondence
made throughout the process of individual events, and correspondence made discussing
exceptional events generally. And we believe that because, in response to this same language
submitted to other EPA regions, we have received email correspondence from an array of
circumstances, and that correspondence included emails found with keyword searches.

[see Appeal Letter for more details]

Dear Mr. Bergin:

Please refer to the attached appeal determination for the above-referenced appeal.

Thank you.

Dear Dillon Bergin:
Please see attached letter regarding an exension to 6/28/24.  If you have any questions please contact Sandra Lesch.
Thanks,
Clarice Jacskon, R9 FOIA Officer

Dear Dillon Bergin,
We wrote to you on August 23, 2023, after receiving your appeal request from the National Foia Office. We asked to arrange a meeting with you and our subject matter experts to both clarify and narrow the scope of the email search you requested. Our initial search returned a voluminous amount of potentially responsive records that we estimated would take us unitl late June 2024 to complete. We have not yet heard from you.I att empted to contact you by telephone earlier today, but was unsuccessful.
In the interest of providing both focus and efficiency to the work of our staff and the documents you would like to receive, it would be helpful to have a dialogue with you. Please contact me either by phone or email within the next ten (10) days, so we can proceed with responding to your request. If you have any questions, my phone number is: 415-972-3454, email: lesch.sandra@epa.gov. Thank you. (mailto:lesch.sandra@epa.gov)
Sincerely,
Sandra Lesch
Assistant Regional Counsel

Dear Dillon Bergin,

Our team would love the opportunity to meet with you to clarify your request for emails associated with your original FOIA request. Here are some potential times we propose to meet with you next week (all are in Pacific time). Please let me know if you are available at any of these dates/times and I will schedule a meeting and forward the information to you. Thank you.

Mon 10/16 2-3pm (all times are PT)
Tue 10/17 8-9am
Thu 10/19 8-9am
Fri 10/20 8-9am, between 10am-1pm

Sincerely,
Sandra Lesch

Hi Dillon,

That sounds great. The call will be over Teams, but if you have any trouble accessing it, there will be a call-in phone number. I will send you the invitation shortly. Please confirm receipt. We look forward to speaking with you soon.

Sandra

Hi Dillon,

I just want to make sure you received this invitation for our meeting on Thursday, 10/19/23.

-----Original Appointment-----

Hi Sandra,

Yes I did! Thank you for sending this over and confirming. I appreciate it!

My best,
Dillon
--
Data Reporter
*Mobile:* (267) 314-7952
*Email: *dillon@muckrock.com
*Twitter:* @DillonBergin

Hi Sandra,

Could you add my colleague Molly Peterson (mpeterson@kqed.org) to this
call? She and I have been working together closely on this request.

My best,
Dillon
--
Data Reporter
*Mobile:* (267) 314-7952
*Email: *dillon@muckrock.com
*Twitter:* @DillonBergin

Hi Dillon,

We are open to having your colleague on the call, however, I want to make a few things clear. The purpose of the call is to have you and the subject matter experts meet to clarify the scope of the email search you requested, as part of your second recent FOIA request to the EPA. FOIA requests are only for existing responsive records, and we do not participate in interviews, questions or analysis as part of the process. I just want to be sure you and she both understand that. Please let me know if you have any questions. Thanks.

Sandra

Meeting with requestor, Dillon Bergin, to discuss the scope of his interest in an email search.
________________________________________________________________________________
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________________________________________________________________________________

Hi Sandra, Hi Anna,

Dillon and I work together as subject matter experts. I acknowledge the purpose of the call.

Molly

Meeting with requestor, Dillon Bergin, to discuss the scope of his interest in an email search.
________________________________________________________________________________
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________________________________________________________________________________

Hi Sandra,

I understand and acknowledge that the purpose of this call is to discuss
our appeal and the scope of the email search we requested, and it is not an
interview in any way.
Thanks,
Dillon

--
Data Reporter
*Mobile:* (267) 314-7952
*Email: *dillon@muckrock.com
*Twitter:* @DillonBergin

Hello Dillon,

Thank you and your colleague, Molly Peterson, for meeting with our EPA staff on Thursday, October 19th and for sending your clarifying email.

To summarize, based on our discussions and this email, in response to your original document request and appeal, we are planning to proceed with email searches for the following:

* External correspondence regarding the development, submittal, and review of Clark County exceptional event demonstrations for ozone exceedances occuring in 2018 and 2020 that were submitted to EPA in 2021, conducting the search for correspondence between May 2020 and April 2022.
* External correspondence regarding the development, submittal, and review of the San Joaquin Valley exceptional event demonstration for PM2.5 exceedances of the 1997 24-hour NAAQS, submitted to EPA in May 2021 and concurred on by EPA in July 2021.

Please confirm as soon as possible that you have agreed to narrow the scope of your original request to the two items mentioned above, and we will proceed with starting our records search. Following that, we would be in a position to provide an estimated date of completion. You also understood that should you subsequently want different or additional records, you could proceed with filing a new FOIA request.
Regards,
Sandra

Sandra M. Lesch
Supervising Attorney, Lead FOIA Counsel
U.S. EPA, Region 9
Office of Regional Counsel
75 Hawthorne Street
San Francisco, CA 94105
Ph: 415-972-3454
Fx: 415-947-3570
lesch.sandra@epa.gov<mailto:lesch.sandra@epa.gov>

Hi Dillon,

My apologies for the delayed response. Before we met with you and Molly Peterson to clarify and narrow the scope of your request, we had an estimated due date of June 28, 2024. Our revised search results are in and we are in the process of reviewing the records. We will have a better understanding of when you can expect a response once our additional search refinements are made. We should be able to provide a revised estimate within the next week or two. Thank you.

Sandra

Dear Dillon Bergin,

Your request has been received by the EPA National FOIA Office. The request has been assigned tracking # 2023-R09-04598, please log into your account and review your submission.

The application address is https://foiapublicaccessportal.epa.gov

Thank you,
EPA National FOIA Office

Dear Dillon Bergin,
EPA documents requested by you are available via this Public Access Link (PAL): https://foiapublicaccessportal.epa.gov
Note that to access https://foiapublicaccessportal.epa.gov, you must sign-in using your previously activated user name and password.
If you have forgotten your user name or password, you may reset them through the site by selecting 'Forgot User Name or Password' on the sign in page.
Regards,
EPA National FOIA Office

Dear Dillon Bergin:

Please see attached letter regarding the final disposition for FOIA # 2023-R09-04598 appeal # 2023-005997.  If you have any questions please contact Sandra Lesch.
Thanks

Clarice Jackson, R9 FOIA Officer